Author Archive for Adrian Vermeule

Bobby Chesney’s post about military detention asks all the right questions and I agree with the first several steps in his analysis of those questions. I want to record some questions or quibbles about the later steps in his analysis, however. It is true that Hamdi baldly forecloses “indefinite detention for the purpose of interrogation,” but it is possible that the emphasis here should be on “indefinite,” rather than on “interrogation”, especially in the context of the Court’s discussion, in which the central worry seems to have been that detention could go on forever (whatever the grounds of detention). In any event, our point of course is to criticize Hamdi’s procedural framework for detention, although of course we approve of its holding that detention is substantively authorized by the AUMF. We don’t take Hamdi‘s procedural holding as a fixed point; its correctness is what we mean to question.

If Hamdi’s holding (dictum?) barring detention to acquire intelligence is correct, it would have to be because, as Chesney explains lucidly, there is some predictable skew in the government’s decisionmaking, such that it will detain too many people, inflicting too many costs for too little benefit. The benchmark for determining whether such a skew exists is not just the number of false positives and false negatives, but a weighted comparison of their costs and benefits. A false positive – here, detaining someone who has no useful intelligence – might be less costly overall than a false negative – failing to detain someone who does have useful intelligence. The former is of course more costly to the detainee, the latter to society; a rational and well-motivated government would weigh these costs impartially. The crucial questions, then, are the rates of false positives and negatives, the costs of false positives and negatives (which are not necessarily equivalent), the government’s incentives to conduct the calculus accurately, and whether the judges can improve upon the government’s decisionmaking.

I have not yet heard any account suggesting that if the government could detain in order to gather intelligence it would do so to excess, or that the judges could improve upon its decisionmaking, although I am open to thinking that there is such an account. I will say only that false positives are hardly costless to the government in this setting. One of the comments to Chesney’s post (by Geoffrey Corn) mentions several such costs, such as “distracting resources from more precisely focused intelligence gathering, and overwhelming the logistical capability to hold and care for such individuals.” Even if the government only cares about its own costs, not total social costs, it will have an incentive to keep down the number of false positives. Whether the incentive is adequate is difficult to say; by the same token, however, I see no basis for judges to be confident that it is not. Corn mentions that front-line military personnel may have an incentive to over-detain, but by doing so they are imposing costs on their superiors, who will be aware of the perverse incentive and will try to do something about it. If the problem is agency slack within the military – the commanders cannot fully control the line officers — the notion that judges can fix the problem through due process review strikes me as far-fetched.

As this will have to be my final post, I want to thank our commentators and my co-author for their interesting remarks, and thank Roger Alford for hosting this event.

August 22nd, 2007 - 11:16 AM EDT | Comments Off on Military Detention: A Follow-Uphttp://opiniojuris.org/2007/08/22/military-detention-a-follow-up/ |

In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a “catastrophe” exception to the moral prohibition, so that if enough lives are at stake a utilitarian override kicks in. Roger Alford, our gracious host, suggests (among other things) that we radically understate the appeal of absolutism. He points out that the McCain Amendment and various sources of international law create an absolute legal ban on “torture,” of which coercive interrogation is a subset.

But this point conflates the moral question with the legal question. There is no doubt that most people believe that coercive interrogation should be illegal, and indeed it is; but they also believe that it would be morally permissible or even obligatory for officials to torture, in some vaguely defined set of extreme circumstances, at least if those officials openly take responsibility for their actions and throw themselves on the mercy of juries and the public. McCain himself, in an article in Newsweek, wrote that torture should be illegal, but that in an “urgent” ticking time-bomb case “an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted.” In this, our guess is that McCain speaks for many Americans. (In the Pew Research Center poll that Roger links, “15 percent of respondents said that the use of torture against suspected terrorists in order to gain important information can often be justified, while 31 percent said it is sometimes justified, 17 percent said it is rarely justified and 32 percent said it’s never justified.” So despite the legal ban, 63 percent believe that torture is at least sometimes justifiable; we read this to mean morally justifiable.)

We label the view that McCain defends the OAF view — “Outlaw and Forgive” — and our objection to it is not that nobody holds it, but that it is bad in various ways: self-defeating, unstable, and socially undesirable. There is no need to repeat those points here. Conceptually, however, the undoubted legal prohibition on coercive interrogation does not show that anyone holds the absolutist moral view. Law and morality are not coterminous, in general or in the debate over coercive interrogation.

In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on the first two, I want to focus on the third, and pose a question to Marty and the other commentators.

Some constitutional scholars take founding-era history as evidence of the original understanding of the constitutional allocation of national security powers. Eric and I are not originalists, and as Eric points out in his earlier post, it is particularly difficult to think that the original understanding is useful when the issue is how to allocate national security authority among the branches of government in 2007. Emergencies by their nature present unanticipated circumstances, and the framers’ conditions were so remote from our own that it is hard to see why we should try to settle these questions by poring over their writings. Moreover, as circumstances change over time, the relevant constitutional texts and framers’ discussions become more and more indeterminate, because the framers were not focused on the questions that are critical today.

To be sure, founding-era history might be a bit useful in the second way, as evidence of what is desirable institutional behavior during emergencies. Perhaps the weaknesses of the national government under the Articles of Confederation show that an alliance of states acting through a legislative council can’t handle a truly national security crisis. But no one alive today seriously proposes that anyway, so that information is of low value. However, as one moves through American history closer to the present, the value of history as information increases, and historical examples accumulate. Taking into account the Civil War, World Wars I and II, the early Cold War, and the post-9/11 period, there is some information about what the presidency, the Congress, and the courts ought to do during emergencies. As Marty said in a different comment, perhaps the accumulation of historical examples embodies a kind of “collective wisdom,” though this seems a bit ambitious and too Burkean for my taste. More soberly, it just gives some information about or evidence of relevant propositions, such as that there are cycles of deference to the executive during emergencies, that these cycles do not generally stick (civil liberties bounce back when the cycle has run its course), and that executive government during emergencies has brought us through several major crises, although with clear abuses along the way. This evidence is hardly conclusive, but it is something; and if we lack lots of other good evidence, it might be decisive.

But what I most want to emphasize is that history is also relevant in a third way, as showing what is politically possible (whether or not desirable) during emergencies. Ought implies can; those who want to say that Congress or the courts should be less deferential than they historically have been during emergencies need to show, first of all, that less deference is politically possible. I am not at all sure that this can be shown, or that it is true. The pressures that cause Congress and the courts to defer to the presidency during emergencies are powerful; there is a kind of inevitable logic to Justice Jackson’s observation in Korematsu that “courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.” This point generalizes beyond military orders and Korematsu. In an earlier post I brought up the recent action of the Democratic Congress in voting the administration further surveillance authority, despite the administration’s lack of credibility. If the executive is warning of terror attacks that might be prevented by changing a relevant legal rule, what else can legislators realistically do?

So my compound question to Marty and others is: could things have been different, in a realistic political sense rather than a logical sense? Can we identify an emergency in, say, the past century in which we can realistically imagine Congress or the courts being substantially less deferential than they actually were? Can we really imagine that the World War II Congress would not have ratified Roosevelt’s internment order, or that the Supreme Court could have decided Ex Parte Quirin differently than it did? Of course counterfactual claims are tricky, but implicit counterfactuals already underpin oft-heard claims that Congress or the courts should (and thus could) have acted differently in past emergencies. My suspicion is that the more deeply we understand the historical conditions in which institutions acted, the more we will think that great deference to the executive in America’s historical emergencies was politically inevitable. And if so, the many commentators (not necessarily those participating here) who suggest that Congress or the courts should have acted differently in the past may be whistling in the wind.

There is an issue that comes up repeatedly in discussions of national security law. Suppose we define “law” broadly to include the optimal allocation of institutional authority to establish and execute national security policy. On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances? If one is agnostic about the merits of first-order policies that one cannot judge, for want of expertise, how can one make a second-order argument that some institution is relatively more likely to make “good” national security policy? To know what counts as “good”, wouldn’t one have to judge the merits of first-order policies? In our book, Eric and I are agnostic about the merits of many national-security policies the executive has pursued during emergencies, in particular the post-9/11 emergency. But we urge the second-order claim that the executive does and should receive even more deference during emergencies than during normal times. Is this inconsistent? (Lou Fisher’s post can be read to suggest that it is).

On closer inspection, however, this looks like a pseudo-puzzle. In fact it is routine to make second-order judgments when, and indeed because, one cannot make first-order judgments. I may have no idea whether the diet prescribed by my Harvard-trained doctor is superior to that suggested by the diet guru Dr. Atkins; but I can make a coherent judgment to trust the former’s credentials and expertise over the latter’s. Where one cannot judge outputs or results, one can still judge inputs, such as training, resources and expertise. Moreover, it is often easier to make relative judgments than absolute ones. (How tall is the Sears Tower? I have no idea. But I am confident it is taller than the Washington Monument, whose height I do not know either). And the thesis we defend in our book is entirely relative: as one moves from normal times to emergencies, the executive’s comparative advantages increase and other institutions should shift more authority to the President. “The deference thesis does not hold that courts and legislators have no role at all. The view is that courts and legislators should be more deferential than they are during normal times; how much more deferential is always a hard question and depends on the scale and type of the emergency.” (Terror in the Balance, p. 6). Because it is so hard to know how much deference is correct, we plump for the historical level of deference, which has been very great during emergencies; those who would argue that the historical level has been too great have a kind of burden of proof.

Our particular second-order judgment about the relative benefits of shifting power to the executive during emergencies may be right, or wrong, on the merits. But there is nothing inconsistent in combining (1) agnosticism about first-order judgments of national security policy with (2) clear second-order judgments about relative institutional capacities. Indeed, to the extent (1) is correct, (2) is all the more pressing.

A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is to maximize its power. What to make of this suggestion, and of the general problem of distrust of the executive?

Of course, the “executive” is to some extent a they, not an it, although it is plausibly a more centralized and hierarchical institution than the American Congress, which displays fairly weak party discipline. To clear away this issue, let us focus on the President, ignoring that in practice the President is constrained by the need to coordinate many different executive officers, offices and institutions. What motivates Presidents? No single thing. Different presidents have different motivations, and whatever their motivations, they are constrained in various ways by political circumstances. In Chapter 1 of the book (pp. 53-57), we recount the cross-cutting motives that Presidents and other executive actors hold, including the desire for power, the converse desire to duck responsibility, the desire to advance preferred ideologies (which may or may not include executive aggrandizement), and even the desire for leisure time. Following an important paper by my colleague Daryl Levinson (“Empire-Building Government in Constitutional Law”, Harvard Law Review 2005), we doubt there is any sense in which power-maximization is the dominant presidential motive, let alone the sole one. Moreover, Presidents cannot always act on their motives; they are bound down by political and reputational constraints, such as the need to please both a political party and the median general-election voter (for first-term presidents) or to please the historians (for second-term presidents). Some presidents are power-maximizers, some are not, and power-maximizers may be constrained to act as if they were not, depending upon political circumstances.

What is true, as Heller’s post exemplifies, is that distrust of presidential motivations is a real obstacle to interbranch and bipartisan cooperation in the war on terror. In other wars, such as the Civil War and World War II, presidents used credibility-generating devices to enhance public trust; thus both Lincoln and Roosevelt placed members of the opposition political party in their war cabinets, and President Clinton made a moderate Republican his Secretary of Defense. The current Bush administration can very plausibly be faulted for failing to employ these and other institutional devices for generating credibility and trust (devices that Eric and I discuss at length in “The Credible Executive,” University of Chicago Law Review 2007). These devices have their costs – the price of generating credibility is that the President surrenders some control over policymaking to political competitors — but for a President like George W. Bush whose credibility is exceedingly thin, the benefits would be greater still.

All that said, however, we ought not overlook a positive point: in an uncertain security environment, legislators often have overwhelming incentives to transfer new powers even to a President with very little credibility. The Democratic Congress recently gave the administration a temporary enhancement of its surveillance authority, in part because the administration warned of an increased risk of terror attacks. The legislators’ political calculus seems to have been that even if the warnings could not be verified, and even if there was no reason to trust the administration’s claims, still the warnings might be true, and the political risks of rebuffing them were too great; what if an attack actually occurred and legislators were blamed for their inaction? Executive credibility is important, but it is not the only thing that is important. The circumstances of emergency politics will often produce legislative deference even to a noncredible executive in matters of national security.

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